UK ‘sovereignty’

It is over a decade now since the European Court of Human Rights delivered Hirst v United Kingdom (6 October 2005), ruling that the UK’s blanket (legislative) ban on convicted prisoners voting breached Art 3 of Protocol 1 to the Convention. Five years ago, in Greens and MT v UK (23 Nov 2010), the Court ordered the UK to table Convention-compliant legislative proposals to secure compliance with Hirst. This resulted in a Report of a special Joint Committee of the UK Parliament (the Report of the Joint Committee on the Draft Prisoner Voting (Eligibility) Bill (16 December 2013)), which concluded that the law reform required to secure compliance with the Convention was comparatively minor, agreed that there were sound reasons to amend the law and proposed specific ways forward.

Two years on and the UK government has done no more than acknowledge the Report, which Parliament has not considered. With the law still not amended, on 9 December 2015 a further milestone in the chronology of prisoner voting saga occurred when the Committee of Ministers passed a second interim resolution highly critical of the UK’s inaction. The Daily Telegraph has reported this as a victory for the UK, although, in fact, the Committee of Ministers will return to the matter in December 2016.

This post discusses and criticises the reasons for inaction and non-compliance supplied by the Michael Gove (Lord Chancellor and Secretary of State for Justice) when he appeared before the House of Lords’ Select Committee on the Constitution on 2 December 2015 (Q 11, pp17-18 [unrevised version]). Continue reading →

I thought that the readers of this blog might be interested in the extracts that follow from the Daily Mail, 20 years ago yesterday (28 Sep 1995). The newspaper was reporting on the famous, and indeed controversial McCann v UK (‘Gibraltar shootings’ case). If I recall correctly, The Sun’s headline was ‘The Euro-Clown Court’. (See also The Independent’s reporting here, this BBC site for historical interest, and click on the picture for the 1988 ITV documentary ‘Death on the Rock’ [which concerns the shootings, not the Strasbourg case]).

An interview (conducted by Graham Butler: University of Copenhagen) with former (‘Icelandic’*, Strasbourg) Judge David Thór Björgvinsson has just been published in Utrecht Journal of International and European Law. It is available here (thanks to Jörg Polakiewicz for ‘tweeting’ this).

The former Judge (now Professor) Thór Björgvinsson was a Strasbourg Judge over the years 2004-2013. Much of his interview concerns the Opinion 2/13 from the Court of Justice of the European Union on the Union’s accession to the European Convention on Human Rights. What is said there is fascinating, whilst some questions and answers at the end of the interview may be of more direct interest to readers of this blog given the critique offered of the Court as an institution that is, he maintains, less assertive than it has been in the past, due to the pressure exerted upon it by States (above all the UK),

Former Judge Thór Björgvinsson makes some interesting comments about the influence of some of the most senior members of the Court Registry on Strasbourg judicial decision-making Continue reading →

The Court (sitting as a Chamber) declared this application inadmissible on the above date. The domestic case attracted great interest because it concerned the euthanasia issue (in fact, assisted dying). For constitutional lawyers the positions adopted by various of the UK Supreme Court judges under the Human Rights Act regime was of considerable interest, and this was at the heart of the Strasbourg decision.

This brief comment deals solely with the Nicklinson application. Arguably, the Court demonstrated its unwillingness to extend Article 8 law in a way that would, on the facts, require the domestic courts to challenge an Act of Parliament (here section 2(1) of the Suicide Act 1961). In particular, the Court refused to envisage that its jurisprudence on Article 8 should impose on the domestic courts an obligation to pronounce upon the merits of what was at stake in Nicklinson – the legality of the UK’s blanket ban in assisted dying, which was enshrined in section 2(1) of the 1961 Act – to a greater extent than the UKSC had under its understanding of the HRA regime (in Strasbourg words, it would not forced upon the domestic courts ‘an institutional role not envisaged by the domestic constitutional order’ – see below).

Seen another way, the judgment evidenced Strasbourg’s respect for the internal distribution of powers and decision-making process (on the issue at stake) within the UK (as it put it, ‘Parliament’s discretion to legislate as it sees fit in… [an] area’ that was within the UK’s margin of appreciation).

The decision may also be notable for the Court’s statement (see below) that ‘when [it] concludes in any given case that an impugned legislative provision falls within the margin of appreciation, it will often be the case that the Court is, essentially, referring to Parliament’s discretion to legislate as it sees fit in that particular area’.Continue reading →

A link to a really interesting and informative post from Sarah Lambrecht (law clerk at the Belgian Constitutional Court) can be found below.

Sarah knows far more about the matters she addresses than I do, although I do make these comments at the end, offering a view on the UK situation.:

Fascinating and informative post, thank you.

With respect to your concluding sentence (‘one can wonder though to what extent the proposed changes are not principally directed at weakening the powers of the domestic courts—under the guise of strengthening their role by stopping the perceived mission creep of the European Court of Human Rights’), I can certainly see your point and do not disagree.

It is interesting that it is in the UK and the Netherlands that there has been this backlash against Strasbourg – as I understand it, both countries tend to use the ECHR as the focal point for their domestic regime of human rights protection (unlike, eg, Germany). I wonder if that situation has been at the root of much of the resentment apparently felt toward Strasbourg as an alien influence on the privileged domain of domestic law?

I wonder too if this accounts – partly at least – for the series of attacks on the Court by some senior members of (or former members of) the judiciary in the UK. Looking to speeches delivered by Lord Sumption, Judge and Laws LJ, it seems they too would favour a reduction in judicial power that a move away from reliance on Convention rights in the domestic setting could provide. These critics give the impression that they think that Strasbourg law has simply become too big.

Such views should not be readily dismissed. The real issue is what counts as a proportionate and constructive response to the issues arising.

The problem there, it seems, is whether the politicians can be trusted to deliver such a response, not least of all when it is politically advantageous to attack the Court. In that regard the judicial voices against Strasbourg have given some legal respectability to the politicians’ arguments that Strasbourg’s influence in (UK) domestic law should now be limited, i.e. as you suggest, the domestic courts’ need to be able to reassert themselves, and regain supremacy against the foreign invader (Strasbourg mission creep etc). But with the reform door unlocked, what is then to follow?

Editors’ note: The blog invited constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We end this series with a post by Sarah Lambrecht, law clerk at the Belgian Constitutional Court and a PhD Fellow at the University of Antwerp. You can read the other contributions in this series here. While the HRA Watch series has now ended, we will of course continue to welcome posts on HRA/ECHR matters.

The tumultuous relationship between the UK Government and the European Court of Human Rights (ECtHR) is unlikely to normalise with the Conservative Party having obtained, against all polling predictions, an absolute majority at the May 2015 UK general election. In its

… just a few lines to note that a judgment from the Russian Constitutional Court (RCC) last week – on which see this very informative post by Maria Smirnova here – has stirred some interest, and prompted the President of the Parliamentary Assembly of the Council of Europe to issue a Press Release expressing her concerns (see here). I’d be fascinated to know more about the judgment, and what it reveals about the situation in Russia generally regarding the ECHR, and the outlook of the RCC. If I understand matters correctly:

the judgment stands for the proposition that, as a matter of Russian Constitutional law, Strasbourg judgments in which Russia has been found to violate the Convention do not need to be implemented if doing so breaches the Russian Constitution (but the ‘right to object’ should only be exercised in exceptional cases)

in order to determine such a question the RCC has now clarified the procedural means by which cases may reach it.

I understand that, from one angle, the ruling itself can be interpreted in a positive way, in the sense that the RCC indicates that it will strive to find a harmonious interpretation of the national constitution and ECHR law, and look to enter into a ‘constructive dialogue’ with Strasbourg on these matters (the position adopted by other apex courts).